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A Commentary:
The Battle Over Eminent Domain Based on "Blight"
An Unforgettable Hearing at the New York State Court of Appeals

By Carol W. LaGrasse

A few years after he arrived in New York City from Germany, my father's grandfather was drafted into the Civil War. When he returned to the Lower East Side after the war, his wife and daughter were dead of typhoid. Only my grandfather survived. Conditions in the tenement house at 190 Eldridge Street were harsh in those days. The masonry building was still standing when I last walked down Eldridge Street, but for perhaps a century the tenants have had the benefit of flush toilets, rather than shared shovel-out privies that were in the basement when my grandfather was a little boy.

Looking back, a person could say that the tenement should have been condemned and torn down and the City of New York should have built low-cost housing to clear the unsanitary conditions that caused the neighborhood to suffer from "blight." But of course, many conditions in the teeming city were equally desperate.

Today, municipal officials create human suffering of a different nature, destroying neighborhoods under the pretext that they are "blighted." The bonds between neighbors are ripped apart, businesses that people and their families have built over decades are torn from them, and the social character is eradicated, all in the name of a supposed "public purpose" of clearing "blight," a characterization invoked whenever a favored sector, whether a well-connected developer or a private university, covets the area where the neighborhood is located.

So, when Columbia University wanted to expand along Broadway in the area of West 125th Street in Manhattan, it wasn't surprising that the Empire State Development Corporation, ESDC, an authority with the power to exercise eminent domain to clear property, got involved.

Columbia University had hired the consultant, Allee King Rosen and Fleming, known as AKRF, which has been called on to evaluate a number of neighborhoods included in the city's redevelopment projects.

This university's preparation for eminent domain was followed up with the real thing. The Empire State Development Corporation, which has the power of eminent domain, took the AKRF blight study under its wing to justify condemnation of the property of resistant owners. Not surprisingly, the consultant found that the neighborhood where Columbia wanted to acquire property was "blighted."

Opponents of using eminent domain questioned whether the ESDC should have hired the same consultant as the university. The ESDC then found a different consultant, which reached the same conclusion that the neighborhood suffered from "blight." But the Appellate Division of the New York State court system rejected the ESDC's grounds for eminent domain and the agency appealed to the state's highest court.

The noted civil right attorney Norman Siegel argued on June 1 in the New York State Court of Appeals on behalf of three property owners, Tuck-It-Away, a storage company; gasoline service station owners Parminder and Amanjit Kaur; and P.G. Singh Enterprises, also the owner of a gasoline service station on West 125 Street. Mr. Siegel, whose name is well-known because he was the executive director of the New York Civil Liberties Union, pointed out the bad faith of engaging the services of AKRF.

Intriguingly, Mr. Siegel pointed out that buildings that Columbia had accumulated in the neighborhood as it prepared to expand comprised most of the roster of blighted properties because the university had allowed them to deteriorate since it acquired them. The Columbia University properties were key to whatever deterioration the neighborhood was experiencing, he said.

But, in response to the justices' rapid-fire questioning, he called attention to other salient aspects of how the conclusion was reached that the neighborhood should be described as "blighted."

He said that the methodology to find that the neighborhood was blighted used arbitrary standards. One study used the trigger of 25 percent of the properties, another used 50 percent to find that the neighborhood was "blighted."

Mr. Siegel said that the standard for "blight" based on floor area ratio for underutilized space was 60 percent. But the recent designation of 60 percent meant that by definition, a gas station was "blight," he said.

He responded to a justice's question of whether violations existed on the property.

"Yes," he said, "garbage, vermin, all caused by Columbia."

A justice shot back, "The methodology is so biased that we should throw out the study? Is that our role?"

"You could take that role," Mr. Siegel replied, just as quickly. The exchanges during this part of the justices' questioning were like machine gun fire.

The justice shot back again, "In Atlantic Yards, your people said that." (In the Atlantic Yards case, known as Goldstein vs. ESDC, the neighborhood property owners had lost before the Court of Appeals last November.)

Mr. Siegel refined the discussion: "It's a matter of blight-like conditions. Blight is about a liability, a disease."

The court remarked that the pictures in Atlantic yards didn't look like blight. Then a justice moved to the position that would usually be taken by an appeals court, saying, "We're not supposed to evaluate, just go by the agency."

But Mr. Siegel pressed on: There was no public purpose, he emphasized.

However, a justice returned to the blight question, "This area, it would appear, is far more blighted than Atlantic Yards."

But Mr. Siegel responded that even if that were correct, still, "In Yonkers, you said that deteriorated conditions are not enough."

A justice changed the topic, "You're going much further."

Mr. Siegel replied, "We're going much further. The ESDC hired itself Columbia's own consultant. You can't serve two masters."

The appeal by the Empire State Development Corporation, which had lost at the Appellate Division, hinged on a number of factors, including whether the blight finding was genuine; whether a genuine public purpose existed for the condemnation, considering that Columbia University was a private institution; and whether due process had been served when the case went to court while a freedom of information request by Mr. Siegel had not been fulfilled by Columbia University.

On June 25, two days after the fifth anniversary of the despised Kelo v. New London decision, the Court of Appeals handed down its decision. The New York City property owners lost on every count.

The court found that the finding of "blight" was sufficient to justify the eminent domain. Justice Smith almost held out on that one, stating that "The finding of blight in this case seems to me strained and pretextual, but it is no more so than the comparable finding in Goldstein. Accepting Goldstein as I must, I agree in substance with all but Section VI of the majority opinion."

The majority of justices were of the opinion that the ESDC had properly qualified the project under several statutory definitions of a "civic project" under Section VI. Justice Smith did not join their opinion on the civic project finding because the majority read the wording of the statute as broadly as the literal wording permits and this could cause the statute to be unconstitutionally applied, for instance to allow private tennis schools as "educational" uses or adult video stores as "recreational" uses. But the majority was also of the opinion that the nature of the project to advance higher education is the "quintessential example of a 'civic purpose'." And the project is to bring jobs and many other benefits to the neighborhood, which strengthens the finding of a civic purpose. Furthermore, unlike in a recent decision pertaining to Brooklyn's Atlantic Yards, the concern that a private enterprise will be profiting through eminent domain is absent. On top of that, the question of due process that the property owners raised doesn't apply because in an eminent domain procedure, neither discovery nor freedom of information requests can delay the proceedings.

The ruling cited layer on layer of conclusions justifying eminent domain on the basis of "blight." This is important, because, if there were no findings of "civic purpose" as an alternate, in accordance with the Section VI evaluation, the finding of blight would justify eminent domain as the public purpose. The justices enumerated and evaluated a total of three blight studies that had been made, including one by Urbitran Associates that was undertaken under the auspices of the New York City Economic Development Corporation in 2003 after the university approached the agency about redeveloping the area. But, considering that this study encompassed all of West Harlem, the Court of Appeals' citation of the study as bolstering the finding of blight seems quite unpersuasive even if a person were to agree with the "blight" method of deciding whether to justify eminent domain.

The ruling did look at the conclusions of the studies of the neighborhood area. The court stated that in 2006, Columbia hired the environmental planning and consulting firm Allee King Rosen & Fleming (AKRF) to study the site, and subsequently the ESDC went in with Columbia on the costs of the study, which was released in 2007. The study found that the project site was "substantially unsafe, unsanitary, substandard, and deteriorated, or, in short, blighted," according to the decision's summary. The court approvingly noted that when questions were raised about the university's initial hiring of the consultant, the ESDC retained a second engineering and environmental consultant, Earthtech, to separately do a "blight" study of the project site.

Earthtech found a dearth of new construction in the area, indicating "a long-standing lack of investor interest in the neighborhood." The court noted that Earthtech also found extensive building code violations, chronic problems of water infiltration into the buildings, many buildings with deteriorated facades, several buildings that had been sealed by the City Fire Department because of unsafe conditions, widespread vermin on the streets, graffiti on the walls of buildings and other structures. Earthtech found that Tuck-It-Away had three times the average number of building violations as the parcels acquired by Columbia over the previous years. The conclusion was that the neighborhood conditions created a "blighted and discouraging impact on the surrounding community."

ESDC announced that it was undertaking the project as a "land use improvement project" and as a "civic project" in accordance with the New York statute. The court noted that the agency determined that the neighborhood "suffer[ed] from long-term poor maintenance, lack of development and disinvestment" and the project would help curb the "current bleak conditions [that] are and have been inhibiting growth and preventing the site's integration into the surrounding community."

How did the state come to the point that such tendentious studies involving elaborately tabulated "evidence" leading to the conclusion that the area is subject to "disinvestment" and "preventing a neighborhood's integration into the surrounding community" constitutionally justify the eradication of a neighborhood by government force?

The decision of the Court of Appeals in Goldstein last November gives a history of the interpretation and expansion of the clause in the State Constitution (Article XVIII) granting the Legislature the power to "provide in such manner, and by such means and upon such terms and conditions as it may prescribe…for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas."

In the Goldstein case, the Court of Appeals found that the petitioners were "doubtless correct that the conditions cited in support of the blight finding at issue do not begin to approach in severity the dire circumstances of urban slum dwelling described by the Muller court in 1936, and which prompted the adoption of Article XVIII at the State Constitutional Convention two years later."

But the Court of Appeals held that it had never applied this standard that responded to conditions "in the midst of the Great Depression."

For instance, in the Columbus Circle area where the Coliseum was proposed to be built, in 1953 the Court of Appeals observed in its Kaskel v. Impellitteri decision:

"Of course, none of the buildings are as noisome or dilapidated as those described in Dickens' novels or Thomas Burke's 'Limehouse' stories of the London slums of other days, but there is ample in this record to justify the determination of the city planning commission that a substantial part of the area is 'substandard and insanitary' by modern tests."

Here, the court seems to be speaking in hyperbole with its references to Dickens and Burke. And it also seems that the words "modern tastes" could be reasonably substituted for "modern tests" to convey the court's meaning.

But, in the event it is still unclear that the New York Court of Appeals is writing law that outstrips the State Constitution, the next paragraph of Goldstein cites Yonkers Community Development v. Morris in 1975:

"Historically, urban renewal began as an effort to remove 'substandard and insanitary' conditions which threatened the health and welfare of the public, in other words 'slums' (see NY Const., Art XVIII, Sect. 1), whose eradication was in itself found to constitute a public purpose for which the condemnation powers of government might constitutionally be employed. Gradually, as the complexities of urban conditions became better understood, it has become clear that the areas eligible for such renewal are not limited to 'slums' as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose."

At the Property rights Foundation of America's Eighth Annual National Conference on Private Property Rights in 2004, Dr. Mindy Fullilove of the New York State Psychiatric Institute and Professor of Clinical Psychiatry and Public Health at Columbia University witnessed to another way of looking at the clearing of urban "blight." In her speech about how tearing up city neighborhoods hurts America, she said:

"Urban renewal was particularly brutal for African Americans…[T]his is in the fifties and sixties under the Housing Act of 1949—African Americans called this urban renewal 'Negro removal.'…And it turns out that 63 percent of the people who were displaced by those urban renewal programs, 2,500 projects in 1,000 U.S. cities, were African American. We can estimate that 1,600 urban renewal projects were directed at African American neighborhoods.

"So the losses of neighborhoods like the Hill District, which were striving neighborhoods of immigrants to the city, people trying to achieve the American dream, these losses were horrific."

The uprooting of minorities (as well as other ordinary families and businesses) for the privileged class is still going on. The vocabulary (the "modern test") has been refined, the sophistication level raised.

But the words justifying eminent domain for the public health and safety, as when buildings are "substandard and insanitary" are still there. These words are much like the power invested in local public health and safety officials to order the demolition of a building when it is a threat for public health and safety, as when a fire safety expert, health official, or professional engineer determines that it has deteriorated to the point of danger of collapse as a result of fire or aging, when filthy and infested with rodents. This power preexisted the extension of the use of eminent domain to clear "blight" for redevelopment.

Looking back to my great grandfather returning from the Civil War to find his wife and little daughter dead of typhoid and seeing today, one hundred years later, that the tenement building still stands, witnesses to the other alternative: When the ability to remedy insanitary conditions exists, there may be no justification to demolish a neighborhood.

The role of the elected legislature is desperately needed to restrain the callous power of the court. The capacity to exploit the categorization of "blight" and ideas such as "disinvestment" that bolster this infringement on the basic human right to be secure in one's home and community should be eradicated.

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